Under federal law, the U.S. Environmental Protection Agency (EPA) may
investigate but cannot prosecute violations of environmental law. Prosecution
is handled by state attorneys, by a U.S. Attorney or, most often, by the
Environmental Crimes Section (ECS) of the U.S. Department of Justice (DOJ).

In 1990, rumors and occasional press reports were circulating about
sweetheart deals between ECS and major polluters. At EPA headquarters,
disquieting reports were coming in from EPA field criminal investigation
agents, indicating that DOJ was dropping criminal cases against executives
of Fortune 500 companies.

Richard Emory, Acting Director of EPA's Criminal Enforcement Counsel
Division, warned his superiors about the situation and was promptly ordered
to investigate. What he found was shocking, even by the standards of the
Reagan-Bush years. He documented at least 20 cases of sweetheart settlements
by DOJ. Here are a few examples reported by Congressional investigators:

Congressman Dingell, heading the House Subcommittee on Oversight and
Investigations, said:(1)

Disturbing trends emerge from these cases. First, there seems
to be a disinclination to prosecute the responsible corporate officers
of large corporations. In the case of Weyerhauser... the DOJ overruled
both the EPA and the U.S. Attorney, and no individuals were charged even
though the investigation showed that a Weyerhauser [paper] mill... had
KNOWINGLY dumped toxic... waste... into a stream for at least a decade.
[Emphasis added.]

Dingell went on to point out that, in contrast, a small businessman with
a plant near the Weyerhauser mill was convicted of felony charges for illegally
burying ten drums of dried paint.

Dingell says further: "Another closely related trend that we are finding
is the tendency to settle criminal cases by only having a corporation pay
a monetary fine. By substituting fines for individual accountability, environmental
crime becomes just another cost of doing business and the whole purpose
of the criminal law, which is to establish individual responsibility, is
undermined."

He cites the example of PureGro, a subsidiary of the giant Unocal company.
Corporate officials had KNOWINGLY allowed toxic waste to be dumped in an
open field, poisoning farm animals and perhaps causing the death of one
person. When caught, the company was willing to plead guilty to a corporate
felony and pay a substantial fine, but the state attorney's office rejected
the offer in order to pursue criminal charges against responsible corporate
officials. DOJ took over the case and allowed the company to plead guilty
to one misdemeanor and to pay a $15,000 fine.

Case after case showed that corporate officials, who had knowingly allowed
illegal dumping and other mismanagement of toxic wastes, and who could
have been sent to prison as a result, were let off the hook by DOJ. Additional
corporations named by Dingell and by a second Congressional report(2)
were Chemical Waste Management, United Technologies, U.S. Sugar, Hawaiian
Western Steel, and the Thermex Energy Corp. The most notorious case, however,
and the one that received the most publicity, was the Rocky Flats nuclear
weapons plant in Colorado, run by Rockwell International for the U.S. Department
of Energy. This plant is extensively contaminated with plutonium and toxic
wastes and will cost more than one billion dollars to clean up.

A third Congressional report, from Representative Wolpe, Chairman of
the House Subcommittee on Investigations and Oversight,(3)
points out that, "Rockwell officials responsible for the facility knowingly
violated the law over prolonged periods of time and aggressively resisted
all efforts to force them to comply with environmental standards."

Among the violations mentioned in the report, which Rockwell officials
were aware of, were: the burning of plutonium-laced hazardous waste in
an illegal unlicensed incinerator for at least ten years as part of a phoney
"plutonium recovery" scheme; illegal unlicensed storage of mixed toxic
and so-called low-level nuclear waste which leaked into nearby public waters;
and false certification that the company was in compliance with government
environmental standards.

Representative Wolpe's report goes on:

Although the prosecution collected significant evidence of
criminal wrongdoing on the part of high-level Rockwell officials, they
did not indict them on either felony or misdemeanor charges. In fact, before
they had even directed their investigators to finally compile the evidence
that had been collected against individuals, and before they had formally
reviewed that evidence, the prosecutors had established a 'bottom line'
for settlement purposes that there would be 'no individual felony indictments.'

However, Rockwell's notoriety is not due to the nature of its violations.
Indeed, there are even worse among the 20 cases that Richard Emory initially
investigated. Rocky Flats/Rockwell hit the front pages because the grand
jury hearing the case rebelled and refused to go along with the DOJ cover-up.
A Colorado reporter following the story wrote:(4)

[The prosecutor] refused to subpoena a witness jurors wanted
to question. They directed witnesses not to answer questions posed by the
jurors. They refused to help the jurors draft an indictment they wanted
to issue. They told the jurors it would be 'inadvisable' for them to continue
to meet. They refused to help the jurors draft a report.... There's a legal
term for this pattern of conduct: obstruction of justice.

Finally, the jurors drew up their own indictment, which the prosecutor
refused to sign. The grand jury then drew up its own report, which it released
to the public. At that point the FBI began investigating the grand jury,
thus placing the federal government in the absurd position of preparing
to prosecute grand jurors for pointing out the government's failure to
prosecute criminals.(5) The FBI investigation
continues today.

The head of the Environmental Crimes Section of the Department of Justice
was Neil Cartusciello. His name, and that of Criselda Ortiz, one of the
supervisory lawyers working under him, appear frequently in the Congressional
reports as two of the principal perpetrators of these sweetheart settlements.
These reports show that, typically, when a case would be prepared against
a big name polluter by a U.S. Attorney or a state attorney general which
included criminal charges against individual corporate officials, Cartusciello
or Ortiz would arrange to take over the prosecution and regardless of how
much evidence had been amassed it would always be, in their view, insufficient.

By early 1992, reports of these goings-on had also reached Congressman
Dingell (who is known as "the junk yard dog" of the House of Representatives),
and his staff started investigating. EPA gave Richard Emory the task of
responding to the Committee's inquiries. The Committee staff did not know
about the internal investigation that Emory had been conducting and Emory
didn't particularly want to tell them, knowing the potential for embarrassment
to the Bush administration. Nevertheless, when the direct question was
put to him, he felt he had no choice but to tell the truth, thus providing
Dingell with the material that served as the basis of the three Congressional
reports and several Congressional hearings. As a reward for telling the
truth, instead of lying and covering up (as ambitious bureaucrats are expected
to do when the administration's reputation is at stake, especially during
a presidential election year) Emory was removed from the position he had
held for a year and a half and was ordered to stop all work connected with
these "problem cases". In spite of numerous citations for efficiency and
excellent performance over the years, he was treated like a pariah and
reassigned to a meaningless low-level job.

Meanwhile, Rep. Dingell held hearings in September, 1992. Dingell tried
to follow up on Emory's revelations by questioning the DOJ officials, but
DOJ stonewalled him. It became a campaign issue when then-Sen. Albert Gore
claimed that, "George Bush and Dan Quayle are protecting their rich friends
who own the smoke stacks and pollute our environment."(6)
However, despite Al Gore's brave words, the stonewalling did not end with
the election of Bill Clinton. Only when a Congressional panel voted to
authorize subpoenas did Clinton's Attorney General, Janet Reno, decide
in June 1993 to conduct a 12-week internal investigation of the Environmental
Crimes Section. Meanwhile the FBI continues its investigation of the Rocky
Flats grand jury, while neither President Clinton nor Janet Reno has responded
to the Rocky Flats grand jury's request for an investigation into the government's
actions.(7)

Meanwhile, Neil Cartusciello and Criselda Ortiz are still in their jobs.
The man who removed Richard Emory, his boss, Earl Devaney, a retired bodyguard
for Dan Quayle, is still in place. It didn't take a 12-week internal investigation
to remove Dick Emory, the only person punished in this whole scandal, who
is now spending more money than he can afford in legal fees to try to restore
his reputation.

An EPA whistleblower once formulated "Dietrich's Law,"(8)
which says, "No one in EPA ever gets sent to jail, or loses his job, or
suffers any career setback for failing to do what the law requires, and
the corollary, many people ruin their careers in EPA by trying to do what
the law requires."

--William Sanjour

===============

1. John Dingell, "The Department of Justice Undercutting
the Environmental Protection Agency's Criminal Enforcement Program," memorandum
to the Subcommittee on Oversight and Investigations, Sept. 9, 1992. See
also Dingell's opening statement to the subcommittee Sept. 10, 1992.

2. Jonathan Turley, CRIMINAL ENVIRONMENTAL PROSECUTION
BY THE UNITED STATES DEPARTMENT OF JUSTICE [prepared for Rep. Charles E.
Schumer, Subcommittee on Criminal Justice, House Committee on the Judiciary].
Washington, DC: National Law Center, George Washington University, Oct.
19, 1992.

3. Howard Wolpe, THE PROSECUTION OF ENVIRONMENTAL
CRIMES AT THE DEPARTMENT OF ENERGY'S ROCKY FLATS FACILITY (Washington,
D.C.: Subcommittee on Oversight and Investigations, House Committee on
Science and Technology, Jan. 4, 1993.